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Criminal Trial-Framing of Charges-Allegation of misappropriation of huge amount of Government money-Revision Petition challenging the framing of charges-Dismissed by High Court-On appeal, Held-Per Katju, J.: There was sufficient material to frame the charge, hence not interfered with-Per Sinha, J. : There is lacuna in framing of charges-But the same not interfered with because trial has reached the stage of examination of witnesses and there is likelihood of early disposal of the matter-Penal Code, 1860-s. 420 r/w ss. 120-B, 429, 468 and 471-Prevention of Corruption Act, 1988. Trial Court framed charges against the appellant-accused and co-accused u/s 420 r/w ss. 120-B, 429, 468 and 471 IPC and various provisions of Prevention of Corruption Act, 1988. Allegations were that six bogus firms claiming to have published advertisements, submitted 76 bogus bills worth Rs.30,30,057/- for payment by signing under fictitious names. The bills had not been entered in bill register and no file had been opened in respect of these firms. The file numbers written on the fictitious bills were also fake. Out of the 76 bills, 14 (pertaining to ad-hoc advertisement) were dishonestly processed by the appellant-accused and co-accused. All the bills were filled by another co-accused who was neither posted in the publicity division nor was he authorized to do so. Appellant-accused was also not the incharge of ad hoc advertisements. None of the bills bore initials or signatures of the incharge of the ad hoc advertisements. The bills were also not sanctioned / approved by the competent authority. The Revision Petition challenging the order of trial court, was dismissed by High Court. Hence the present appeals.

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CASE NO.:
Appeal (crl.) 710 of 2007

PETITIONER:
Soma Chakravarty

RESPONDENT:
State Through CBI

DATE OF JUDGMENT: 10/05/2007

BENCH:
S.B. Sinha

JUDGMENT:
J U D G M E N T

CRIMINAL APPEAL NO. 710 OF 2007
[Arising out of SLP (Crl.) No. 552 of 2006]

S.B. SINHA, J :

1. Although I entirely agree with the concluding part of the judgment 
rendered by my learned Brother, but I would like to state my own reasons 
therefor.

 2. Charges have been framed against the appellant and several others on 
25.09.2004. Trial has already started and it is not in dispute that some 
witnesses have been examined. It is likely that the trial would be over 
within a few months. Thus, it would not be proper for us to enter into the 
merit of the matter at this stage.

3. Some of the questions, however, which have been raised by the 
appellant are of some importance and it may be necessary to deal therewith. 
The learned Trial Judge, it appears, did not properly apply its mind in regard 
to the different categories of accused while framing charges. It ought to 
have been done. Charge may although be directed to be framed when there 
exists a strong suspicion but it is also trite that the court must come to a 
prima facie finding that there exists some materials therefor. Suspicion 
cannot alone, without anything more, it is trite, form the basis therefor or 
held to be sufficient for framing charge.

4. In Union of India and Another v. Major J.S. Khanna, Etc. [(1972) 3 
SCC 873], this Court opined:

"22 . It is true that at the stage when the Special 
Judge drew up charges and decided to proceed 
with the case on the footing of a conspiracy to 
defraud the Government, he had only to see that 
there was a prima facie case against the two 
respondents. That could also be the basis upon 
which the High Court had to try upon two 
revision applications. Even so, there had to be 
some material before the Special Judge which 
could point towards a conspiracy in which the 
two respondents had joined. Such of the 
statements which the investigating officer could 
procure did not, as the High Court observed, 
point to such a conspiracy. What appears to have 
been lost sight of by the Special Judge was the 
fact that the period during which the orders in 
question were placed was an emergency period, 
when procedure laid down for such orders could 
not perhaps be strictly adhered to. He also 
appears to have lost sight of the fact that out of 
the thirteen orders in question, four of the value 
of Rs 32,000 and odd were placed by Brig. Mani, 
and orders only for the balance of Rs 8000 and 
odd were placed by Res. Khanna. It may be that 
someone had played fraud in the matter of 
quotations in the name of Darrang Transport, 
United Motor Works, Auto Stores etc. But unless 
there was some material at least to link these two 
officers with the person who tendered those 
quotations, it is difficult to say that there were 
conspirators who had joined with the rest of the 
accused to defraud the Government. In these 
circumstances, we find ourselves unable to agree 
with the contention of Mr Mukherjee that the 
High Court was in error in coming to the 
conclusion that no prima facie case had been 
made out against either of the two officers."

5. In State of Maharashtra and Others v. Som Nath Thapa and Others 
[(1996) 4 SCC 659] , this Court held:

"30. In Antulay case Bhagwati, C.J., opined, after 
noting the difference in the language of the three 
pairs of sections, that despite the difference there 
is no scope for doubt that at the stage at which 
the court is required to consider the question of 
framing of charge, the test of "prima facie" case 
has to be applied. According to Shri Jethmalani, 
a prima facie case can be said to have been made 
out when the evidence, unless rebutted, would 
make the accused liable to conviction. In our 
view, a better and clearer stateme nt of law 
would be that if there is ground for presuming 
that the accused has committed the offence, a 
court can justifiably say that a prima facie case 
against him exists, and so, frame a charge against 
him for committing that offence. 
31. Let us note the meaning of the word 
'presume'. In Black's Law Dictionary it has been 
defined to mean "to believe or accept upon 
probable evidence". (emphasis ours). In Shorter 
Oxford English Dictionary it has been mentioned 
that in law 'presume' means "to take as proved 
until evidence to the contrary is forthcoming", 
Stroud's Legal Dictionary has quoted in this 
context a certain judgment according to which 
"A presumption is a probable consequence drawn 
from facts (either certain, or proved by direct 
testimony) as to the truth of a fact alleged." 
(emphasis supplied). In Law Lexicon by P. 
Ramanath Aiyer the same quotation finds place 
at p. 1007 of 1987 Edn.
32. The aforesaid shows that if on the basis of 
materials on record, a court could come to the 
conclusion that commission of the offence is a 
probable consequence, a case for framing of 
charge exists. To put it differently, if the court 
were to think that the accused might have 
committed the offence it can frame the charge, 
though for conviction the conclusion is required 
to be that the accused has committed the offence. 
It is apparent that at the stage of framing of a 
charge, probative value of the materials on record 
cannot be gone into; the materials brought on 
record by the prosecution has to be accepted as 
true at that stage."

6. The courts although may take a strict view of an offence where fraud 
is alleged against a public servant, but only because it is found to have been 
committed, the same by itself may not be sufficient to arrive at a conclusion 
that all officers who have dealt with the files at one point of time or the other 
would be taking part in conspiracy thereof or would otherwise be guilty for 
aiding and abetting the offence. It is necessary to deal with the individual 
acts of criminal misconduct for finding out a case therefor.

7. In a case of this nature, the learned Special Judge also should have 
considered the question having regard to the 'doctrine of parity' in mind. 
An accused similarly situated has not been proceeded against only because, 
the departmental proceedings ended in his favour. Whether an accused 
before him although stands on a similar footing despite he having not been 
departmentally proceeded against or had not been completed exonerated also 
required to be considered. If exoneration in a departmental proceeding is the 
basis for not framing a charge against an accused person who is said to be 
similarly situated, the question which requires a further consideration was as 
to whether the applicant before it was similarly situated or not and/ or 
whether the exonerated officer in the department proceeding also faced same 
charges including the charge of being a party to the larger conspiracy. 

8. In L. Chandraiah v. State of A.P. and Another [(2003) 12 SCC 670], it 
was held:

"It may be, and as rightly observed by the 
courts below, that they acted in a negligent 
manner and if they had taken due care they 
would have detected the fraud, but they failed to 
do so. However, that by itself would not 
constitute an offence under Section 409 IPC 
though it may expose the appellants to 
disciplinary action under the relevant rules. The 
learned counsel also brought to our notice the 
fact that in respect of the same sub-post office 
some vouchers prepared and countersigned by A-
3 on the reverse side were sent to the head post 
office at Mancherial. PW 5, the investigating 
officer has referred to several such vouchers 
which were sent to the head post office for 
payment, and the officers of the head post office 
also sanctioned payment on the basis of such 
fabricated vouchers. Obviously, the officers at 
the head post office were also not very careful, 
and as a result A-3 succeeded in his evil design 
to fraudulently withdraw a large sum of money. 
The learned counsel submitted that on the basis 
of these facts not only the appellants were 
cheated by A-3 but even the officers of the head 
post office were similarly cheated by A-3."9. Ordinarily, we would have remitted the matter to the Special Judge, 
for consideration of the matter afresh, but as the prosecution has already 
started examination of witnesses and as we have been assured by the learned 
Additional Solicitor General that all endeavours would be made for early 
disposal of the matter, we may not exercise our discretionary jurisdiction 
under Article 136 of the Constitution of India at this point of time. We, 
however, keeping in view the fact that a large number of officers of the 
Union of India are involved and as it is stated at the bar that they have not 
been promoted because of the pendency of this case, would request the 
learned Special Judge to dispose of the matter as expeditiously as possible.
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